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Law enforcement agencies in California won a limited right Thursday to conceal from probationary peace officers information about them gathered during employment background investigations. While the California Supreme Court ruled that the Public Safety Officers Procedural Bill of Rights Act guarantees officers the right to view adverse comments in their personnel files, a bare majority of the justices nevertheless said a contractual waiver of that right could be enforced. Addressing the unusual situation of a cop who’d been hired on while his employer looked into his background, Justice Janice Rogers Brown said it made sense to distinguish complaints related to pre-employment conduct from on-the-job complaints. “To that limited extent,” Brown wrote, “we agree with the county that an employee may waive the protections of the Bill of Rights Act.” Chief Justice Ronald George and Associate Justices Marvin Baxter and Ming Chin concurred in Riverside v. Superior Court (Madrigal), 02 C.D.O.S. 2783. The case, widely watched by law enforcement agencies statewide, began when Xavier Madrigal sued Riverside County after officials refused to let him view an investigation file that contained allegations against him concerning “sexual relations with a prostitute, extortion of a pornographic videotape and use of illegal drugs.” Madrigal, a former officer with the defunct police department of the city of Perris, was working as a deputy for the Riverside County sheriff’s department while under consideration for full-time employment. Although he’d signed a waiver of his right to see the confidential file, Madrigal argued that the county’s refusal violated the police Bill of Rights Act. The high court agreed, rejecting the county’s assertion that a background investigation of a peace officer during probation is not a personnel matter subject to the act. The court also held that law enforcement agencies cannot subject prospective employees to a blanket waiver of their rights under the Bill of Rights Act. However, the majority felt that a waiver limited to an investigation of matters that arose prior to employment could be enforceable. In a concurring and dissenting opinion, Justice Kathryn Mickle Werdegar took exception to the limited waiver. “The majority’s attempt to carve out a narrow exception tailored to fit the facts of this case — a waiver by new peace officers transferring from other agencies as to matters that arose prior to their current employment — is supported by neither law nor logic,” she wrote. “We are not at liberty,” she continued, “to second-guess the wisdom of the Legislature’s blanket prohibition of waivers of rights granted for a public benefit and provide freewheeling, ad hoc judicial review of the overall fairness or effectiveness of the [Bill of Rights Act] under the circumstances of a particular case.” Justices Joyce Kennard and Carlos Moreno joined in Werdegar’s opinion. Pasadena lawyer Michael Stone, who represented Madrigal, couldn’t be reached for comment Thursday. But Christopher Lockwood, who represented Riverside County, declared victory. “We argued mostly in terms of waiver, and the court emphasized that [Madrigal] got bargained-for consideration — a contract,” Lockwood, a partner in the San Bernardino, Calif., office of Los Angeles’ Lewis, D’Amato, Brisbois & Bisgaard, said. “It comes down to, ‘Do you have an agreement?’”

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